Restructuring while on maternity leave: ask the expert

My wife is currently on maternity leave until February 2012 (due to take 12 months off). Her Company is restructuring in the next six weeks, creating a mirror image of current existing roles (i.e. no major change to responsibilities and no change to pay). The primary reason for the restructure is the implementation of a new IT system. However, there is rumour of an upcoming new contract win which would involve 16 new people being TUPE-ed in (no contracts signed yet). My wife has been asked to reapply for a new role within the restructure – although at this point she is only being asked to indicate which role she wants. Does my wife have to go through a re-application process whilst on maternity leave? Does my wife have grounds to reject the competitive applications process and insist on an offer for a suitable alternative or alternatively a reason why it not reasonably practicable to do so?

If there is a legitimate restructure then your wife would have to go through the same re-application process as all other members of staff. If she was excluded from the process or not kept properly informed or was consulted less than her colleagues/not invited to meetings attended by other staff, then that would be another matter. If this happened she could allege that it was because of her maternity leave that she was being excluded. This does not, however, appear to be the case. It would, however, be worth scrutinizing whether it is necessary to restructure all roles if very little is changing. Just because a new IT system is being introduced does not mean that this would necessarily have an impact on roles. If, in fact, the real reason for the restructure is to lose some people before a TUPE transfer in order to avoid a more complicated selection process, then this would be a good reason for your wife to raise her dissatisfaction concerning the process. Provided that the competitive applications process is being carried out for sound business reasons even if slightly illogical (since the tribunal does not go behind a business decision made by a company on the whole) then your wife is unlikely to have grounds to reject the competitive applications process and insist on suitable alternative employment. However, if she was unsuccessful if being given her similar role, they would need to consider her for suitable alternative employment. As a person on maternity leave, she is supposed to be considered for suitable alternative employment (if available) ahead of her other colleagues. It would therefore be in the company’s interest to offer her a similar role rather than rejecting her whilst on maternity leave. This may give her grounds to claim either unfair dismissal and/or maternity discrimination. I would suggest that the first step should be for your wife to apply through the competitive applications process and see what happens. If she is rejected and there is no attempt to consider her for suitable alternative employment, then she should appeal and exhaust the internal process first before considering whether it is worthwhile to make a claim. In considering whether to make a claim, however, this would have to be considered carefully since for unfair dismissal she would have to show that there was no fair reason for dismissal (redundancy/restructure if genuine is a fair reason) and there would need to be an unfair process (I am not clear about the full process followed, but allowing competitive applications and keeping your wife informed are indications that the process may be fair). Furthermore, for a claim for maternity discrimination, it would need to be shown that your wife had been/is being treated less favourably. I do not have any evidence of this for the time being, but it would of course be advisable to keep a close eye on this during the process. In terms of potential compensation, the latter claim has the potential to carry more weight as if an award is made the amount awarded could be unlimited. I trust that this helps.

Comments [1]

Hi Laura, I am being asked to be involved in such a process. Doesn’t the unfairness come in because you may not have the same time or recent experience to compete? My colleagues are in work mode every week whereas I am breastfeeding every 3 hours and don’t get time to focus on anything work related?